State gun fee to ID buyers upheld despite NRA lawsuit

California’s $5 fee on gun sales, which funds laws to take firearms away from criminals and mental patients, will remain in effect after a federal appeals court rejected a constitutional challenge from gun groups Thursday.

The fee is part of a $19 charge that the state collects on each firearms sale to pay for background checks and notify dealers if the wouldbe purchaser is barred from owning a gun under federal or state law.

A 2011 law set aside $5 to support state programs to identify and confiscate guns from people who purchased them legally but later became ineligible to own them because of convictions for serious or violent crimes, domestic violence restraining orders or mental illnesses. More than 18,000 Californians in those categories owned guns as of 2011, according to a legislative staff analysis.

The National Rifle Association and other advocacy groups sued the state in August 2011, arguing that the fee placed an unjustifiable financial burden on Californians exercising

their right to buy and own guns. They noted that most of the feepayers were legal gun owners.

But the Ninth U.S. Circuit Court of Appeals in San Francisco said Thursday that the surcharge imposed a “minimal burden,” at most, on gun ownership rights, and was properly limited to programs aimed at reducing gun crimes.

Since the U.S. Supreme Court has approved bans on gun ownership by felons and the mentally ill, “we have recognized that public safety is advanced by keeping guns out of the hands of people who are most likely to misuse them for these reasons,” Chief Judge Sidney Thomas said in the 3-0 ruling, upholding a lower-court decision.

And while the state may not tax constitutionally protected activities to increase general revenue, Thomas said the California fee supports only programs related to gun sales and public safety.

The ruling is further evidence that the Second Amendment, which declares a right to keep and bear arms, “is not unlimited,” said Michael McLively, an attorney with the Law Center to Prevent Gun Violence, which filed arguments supporting the state law.

“It protects the right to have a handgun in the home, but it doesn’t mean that every single law touching on firearms is unconstitutional,” McLively said. “There’s a lot the states can do to protect people.”

C.D. Michel, a lawyer for the gun organizations, said they were “disappointed but not surprised” by the ruling, since the Ninth Circuit, he contended, has ignored the Supreme Court’s standards for gun laws.

“We look forward to the possibility of the Supreme Court clarifying its ruling in this or another Second Amendment case soon,” Michel said.